Meinrad Greiner v. J. C. Prendergast, 2 Rob. 235

Mab-tin, J. The defendant read his affidavit showing that he had obtained an injunction to stay the execution of a writ of fieri facias which had been issued against him; that the injunction had been dissolved ; that he had prayed for and obtained an appeal from the judgment dissolving the injunction, and had in due time filed the transcript of the record in this court; and that, afterwards, the judge a quo set aside the said appeal.

On this he moved for a writ of prohibition inhibiting the judge from issuing any execution on the said judgment, and commanding him to rescind the order suspending the appeal, and to grant a sus-pensive one according to law. To a rule to show cause the judge of the First District answered, that the defendant had alone appealed from the judgment of dissolution by which damages were given against him and his surety in the injunction bond, and that he had given the latter as his surety for the appeal.

The solvency of the co-obligor of the defendant, as surety for the injunction and for the appeal, was not questioned ; but it was urged that if the defendant could obtain an appeal on giving his co-obligor in the injunction bond as his surety in the appeal bond, that his co-obligor, if he chose to appeal, might give the defendant as his surety; so that both might appeal without giving to the plaintiff any greater security than he had before the appeal was asked, which would be contrary to the provision of the Code of Practice, art. 575. The judge in our opinion erred.

The defendant had a right to a suspensive appeal, provided he offered such surety as would indemnify his adversary against all the consequences which might result from the appeal, as in the case of an increase of the sum recovered, if the appellee should obtain such an increase in this court.

It is true that if both the principal and surety, against whom damages had been given on the dissolution of an injunction, had joined in an appeal, they would have been bound to give one solvent surety, although they were both admitted to be sufficiently solvent to remove all idea of danger on that score ; the reason would be that the law expressly requires surety on the grant of any appeal, devolutive or suspensive. From giving the surety, no appellant, but the State, can be dispensed, though he should show that he possessed in the parish land and slaves, bound by the judgment, of a hundred fold its amount.

The transcript being already in this court, we see no reason to take notice of any part of the defendant’s application, except that which relates to the prohibition of all proceedings in the District Court on his judgment. Let such a writ of prohibition be issued. A prohibition was accordingly issued ordering the judge to abstain from all further proceedings in the case, to rescind the order setting aside the appeal, to suspend the execution of the judgment dissolving the injunction, and to grant a suspensive appeal.

Greiner subsequently presented a second petition to the Supreme Court, in which, after reciting his former application and the order granting the prohibition, he alleged that, previously thereto, an execution had been issued against Levy and Cook, as garnishees under a fi. fa. obtained against him in the' case of Prendergast against Greiner ; that the injunction which he had obtained in the court below, which was afterwards dissolved by that court, and from which judgment of dissolution he had, by means of the prohibition previously granted him, obtained the suspensive appeal now pending, had been granted for the purpose of enjoining all further proceedings under the seizure of the petitioner’s property in the hands of the garnishees ; that, notwithstanding the premises, the judge of the District Court had, in violation of the writ of prohibition directed to him, refused to order the sheriff of his court to suspend his proceedings under the execution against the garnishees ; and that the sheriff was about proceeding to execute the same.- He prayed that an order might be directed to the judge below, to show cause why he should not direct the sheriff of his court to suspend the execution of the fi. fa. against Levy and Cook, and why a direct order should not be issued to the sheriff himself to take no further action in the premises.

A second writ of prohibition was ordered to be issued, directed to the sheriff of the court below, in conformity with the prayer of the petition. M. M. Robinson, for the defendant Prendergast, moved for a rule on the appellant to show cause why the writs of prohibition issued in this case, should not be set aside, on the grounds : 1. That they were issued ex parte, and without notice of the application having been given to the party principally interested in the judgment and execution, in regard to which all proceedings had been prohibited. 2.

That the court had no jurisdiction of the case, the action having been instituted for a sum under $300. Motion overruled.